Who decides what is a defense article

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1. Who holds the pen on the list

Every export control decision on a defense item starts with a prior question: is the item on the list at all. The statute gives that decision to the President, and the President has passed it on. "The President has delegated to the Secretary of State the authority to control the export and temporary import of defense articles and services" (22 CFR 120.2). The items the Secretary designates make up the United States Munitions List, set out in part 121 of the regulations.

The Department of State does not decide alone. "Designations of defense articles and defense services on the USML in part 121 of this subchapter are made by the Department of State with the concurrence of the Department of Defense" (22 CFR 120.2). The list also cannot be widened or narrowed informally. "The scope of the USML shall be changed only by amendments made pursuant to section 38 of the Arms Export Control Act (22 U.S.C. 2778)" (22 CFR 120.2).

That section of the regulations then points to a separate procedure for the harder question of whether one particular item is on the list. That procedure is described in commodity jurisdiction and the order of review.

2. Two routes onto the list

The regulation gives two tests for designating an article or a service. It may be designated if it meets the criteria of an entry already on the list, or if it provides the equivalent performance capabilities of a defense article on the list (22 CFR 120.3(a)).

The second test matters for new technology. A product that does the same job as a listed item by a different engineering route can still be designated, even though the entry was drafted with an older design in mind. The test is performance, not appearance.

3. Items the list does not yet describe

The regulation also looks forward. For its purposes, "a specific article or service shall be determined in the future as a defense article or defense service if it provides a critical military or intelligence advantage such that it warrants control under this subchapter" (22 CFR 120.3(b)).

An item caught this way needs somewhere to sit while the list catches up. A note to the section places it in Category XXI of the list until the appropriate category has been amended to provide an entry for it (22 CFR 120.3). Category XXI is therefore a holding position rather than a subject area of its own.

4. What takes an item off, and what does not

Two things remove an article or service from the regulation. The first is a commodity jurisdiction determination placing it under another department or agency, which stands unless the list is later changed or a later determination replaces it. The second applies where the item is used in or with a defense article and meets one of the release criteria in the definition of specially designed (22 CFR 120.3(c)).

One factor that many exporters assume matters is ruled out in terms. "The intended use of the article or service after its export (i.e., for a military or civilian purpose), by itself, is not a factor in determining whether the article or service is subject to the controls of this subchapter" (22 CFR 120.3). A civil customer does not take a listed item off the list.

The definition of specially designed, and the other terms that decide how far a list entry reaches, are covered in specially designed and the terms that scope the list.

5. Permanent imports belong to another department

The Department of State controls export, reexport, retransfer and temporary import. Permanent import is handled elsewhere. "The President has delegated the authority to control the permanent import of defense articles and services to the Attorney General" (22 CFR 120.5(a)).

The two lists together make up the Munitions List under the Act. Because the Attorney General designates items for permanent import control under separate delegated authority, the Justice Department list carries its own name, the U.S. Munitions Import List, at 27 CFR part 447. In doing so the Attorney General is to be guided by the views of the Secretary of State on matters affecting world peace and foreign policy (22 CFR 120.5(a)).

6. Commerce items that travel with a defense article

Items on the Commerce Control List are regulated by the Department of Commerce under the Export Administration Regulations, at 15 CFR parts 730 through 774 (22 CFR 120.5(b)(1)). A State Department license or other approval may also authorize the export of such an item (22 CFR 120.5(b)(2)).

The exemptions are narrower. An exemption under the regulations may carry a Commerce item only where it is for use in or with a defense article and travels in the same shipment. Separate Commerce approval is not required for items exported on these terms. "No exemption under this subchapter may be utilized to export an item subject to the EAR if not accompanied by a defense article" (22 CFR 120.5(b)(2)).

Riding on a State Department approval does not change what the item is. "The inclusion of items subject to the EAR on a Department of State license or other approval does not change the licensing jurisdiction of the items" (22 CFR 120.5(b)(2)). Any later transaction in the same item goes back to the Commerce rules.

7. Nuclear related items

The regulations step back where atomic energy law applies. Articles, technical data and services in Categories VI, XV, XVI and XX fall outside the regulation to the extent the Department of Energy or the Nuclear Regulatory Commission controls their export. That control runs under the Atomic Energy Act of 1954 and the Nuclear Non-Proliferation Act of 1978 (22 CFR 120.5(c)(1)).

A narrower rule covers naval nuclear propulsion items in Category VI(e) and Category XX(b)(1). A license for those is not granted unless the export comes within an existing agreement for cooperation for mutual defense purposes with the receiving government. Without such an agreement, a license is possible only where three conditions all hold. The article must be identical to one in use in an unclassified civilian nuclear power plant. The export must have no relationship to naval nuclear propulsion, and it must not be for use in a naval propulsion plant (22 CFR 120.5(c)(3)).

8. What this means for a supplier

Four points follow from these sections. The list is set by the Department of State with Defense concurrence and is changed only by formal amendment. Equivalent performance can be enough for designation, whatever the design lineage. A civil end user does not change the answer. And a shipment can mix State and Commerce items only on the terms set out above, with the Commerce items keeping their own jurisdiction afterwards. How a license works once an item is on the list is covered in export licenses and customs clearance.

Key terms

United States Munitions List	The articles and services the Secretary of State designates for export and temporary import control.
Category XXI	The holding category for items determined to be defense articles before the list has an entry for them.
U.S. Munitions Import List	The Justice Department list for permanent import control, at 27 CFR part 447.
Export Administration Regulations	The Commerce Department rules at 15 CFR parts 730 to 774 for items on the Commerce Control List.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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